ex-AR, USN
ND07-00498

Current Discharge and Applicant’s Request

Application Received:  20070306 	Characterization Received:  
Narrative Reason:  MISCONDUCT 	Authority:  MILPERSMAN 1910-146

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: MISCONDUCT due to personal alcohol abuse
Applicant’s Issues:	1. Post service - Equity 
			2. In service - Equity
			
Decision

Date:  20080305		Location:  Washington D.C	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Discussion

Issue 1 ():  The Applicant’s discharge characterization accurately reflects his service to this country.  Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity occurred during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post- service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, as examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s statements concerning post-service conduct, without documented evidence, were found not to mitigate the misconduct, which precipitated the discharge.  

Issue 2 ():  A general (under honorable conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  A discharge under other than honorable conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service.  The Applicant’s service was marred by one retention warning and 4 nonjudicial punishments for violations of the Uniform Code of Military Justice, Articles 86, 111, 112a and 134.  Violations of Articles 111, 112a and 134 are considered serious offenses for which a punitive discharge is authorized upon conviction at special or general court-martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract and falls far short of that required for an upgrade of his characterization of service.  

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19990812 - 19990822  		Active:   
Period of Service Under Review:
Date of Enlistment: 19990823	Years Contracted:  		Date of Discharge:  20011012
Length of Service:  02  Yrs  01  Mths  18  Dys	Lost Time:  Days UA:  02  Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  56	Highest Rank/Rate:  AA
Evaluation marks (# of occasions):	Performance:  3.3(3)	Behavior:  1.7(3)	 OTA:  2.72 
Awards and Decorations (per DD 214):  NONE

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20000216:	NJP -- Viol UCMJ Art. 111 - Driving while under the influence, Art. 134 (2 specs) - (1) Wrongfully consume alcoholic beverages while under the age of 21, (2) Wrongfully and falsely altered military identification card.
	Awarded - FOP ($502.00) for (2 months); RIR (E-1); Restr for (60 days).

20000217:	Retention Warning for misconduct as evidenced by your violation of the Uniform Code of Military Justice, Article 111: on or about 20000211, driving a passenger vehicle, under the influence of alcohol, Article 134: wrongfully consume alcoholic beverages while under the age of 21 in violation of Washington State Law, which conduct was of a nature to bring discredit upon the armed forces, Article 134: wrongfully and falsely alter by laminating a false birth date onto his military identification card in words and figures.

20000818:	NJP -- Viol UCMJ Art. 134 - Under age drinking..
	Awarded - FOP ($502.00) for (2 months); Restr for (60 days).

20000911:	NJP -- Viol UCMJ Art. 86 (2 specs) - Failed to go to two restricted musters.
	Awarded - FOP ($300.00) for (1 months); Restr for (20 days); Extra duties (20 days).

20010514:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20010509, tested positive for THC.

20010516:	Applicant admitted smoking marihuana with another servicemember on 20010430.

20010523:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20010518, tested positive for THC.

20010725:	NJP -- Viol UCMJ Art. 86 - Unauthorized absence (2 days), Art. 112a - Wrongful use of marijuana.
	Awarded - FOP ($521.00) for (2 months); RIR (E-1); Restr for (60 days).

20010819:	Based on competent medical authority review, applicant meets the diagnostic criteria for both alcohol and drug abuse.  Level I (outpatient) treatment was recommended.

Discharge Process

Date Notified:					20010725
Reason for Discharge:	 - 
	 - 
	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20010725
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	 (20010916)
Separation Authority (date):	COMCARGRU THREE (10921)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20011012

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)  Letter from Board for Correction of Naval Records
Letter from Massachusetts State Lottery Commission
News article
Virginia Tech article on Signs and Symptoms of Alcohol Dependency
Letter from applicant to National Guard Waiver Authority

NDRB Documentary Review Conducted (date):	20041103
NDRB Documentary Review Docket Number:	ND04-00937
NDRB Documentary Review Findings:		Proper as issued no change warranted.

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, effective 28 June 1993 until 25 January 2004, Article 1910-146, Separation by Reason of Misconduct - Drug Abuse.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn:  Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC  20374-5023